Citation Nr: 9811260
Decision Date: 04/10/98 Archive Date: 04/28/98
DOCKET NO. 96-38 173 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUE
Entitlement to an increase in a 30 percent rating for Crohn’s
disease.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and her brother
ATTORNEY FOR THE BOARD
S.R. Horn, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1981 to
December 1985.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from a June 1996 decision by the VA RO in Winston-
Salem, North Carolina, which denied an increase in a 30
percent rating for Crohn’s disease. The case was remanded to
the RO by the Board in March 1997 for further evidentiary
development. Such was accomplished to the extent possible,
and the case was returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends her service-connected Crohn’s disease is
productive of greater impairment than reflected by the
current 30 percent rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increase in a 30 percent
rating for Crohn’s disease.
FINDING OF FACT
The veteran’s service-connected Crohn’s disease is no more
than moderately severe.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for
service-connected Crohn’s disease have not been met.
38 U.S.C.A. § 1155 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 4.20, 4.114, Diagnostic Code 7323 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from January
1981 to December 1985. Her service medical records show she
was diagnosed as having Crohn’s disease in service. In May
1986, the RO granted service connection for Crohn’s disease,
and assigned a 30 percent rating.
VA medical records from the 1980s and early 1990s show
treatment for Crohn’s disease.
VA medical records from January 1995 show the veteran
complained of a possible flare of Crohn’s disease, cramps,
and some blood in the stool. She gave a history of recurrent
abdominal discomfort secondary to Crohn’s and said she had an
upper gastrointestinal (GI) series in mid-December that was
normal. Physical examination revealed she was in no acute
distress, the abdomen was soft and tender to palpation, and
there was a polyp-like mass in the lower coccyx. The
diagnosis was rule out gallstones. An ultrasound later that
month revealed the gallbladder was negative and the abdomen
was unremarkable. VA medical records from February 1995 show
the veteran had recurrent abdominal pain and was status post
a normal small bowel follow through. She underwent a
colonoscopy, and the report showed she complained of minor
red bleeding, had a mild problem, and was diagnosed as having
suspected Crohn’s disease and hemorrhoids.
VA medical records from June 1995 show the veteran complained
of increased rectal bleeding with increased weakness,
abdominal pain in the right lower quadrant, worsening nausea
and vomiting, and generalized weakness with upper respiratory
symptoms. She said she stopped taking her medication one
week before because she ran out of it. Physical examination
showed she weighed 108 pounds, was in moderate discomfort,
and her abdomen was tender in the right lower quadrant
without rebound or guarding. The diagnoses included Crohn’s
disease flare; treatment included refill of her medication.
In September 1995, the veteran complained of sore labia for
3-4 days and occasional bleeding. The diagnoses included
lesion post fourchette. The clinician commented the
condition looked traumatic but the veteran denied trauma. In
November 1995, the veteran complained of severe bleeding
ulcers from the rectum once a day with sharp pain in the
right lower quadrant. She also reported a vaginal tear for 2
weeks. She said she was not taking her medication. Physical
examination revealed the abdomen was tender to deep
palpation, and there were normal bowel sounds and no masses.
It was reported the pelvic area was very tender. The
diagnosis was a Crohn’s flare with a vaginal ulcer. After a
follow-up visit the next day, the diagnosis was lesion at
pelvic introitus status post trauma by history and slow
healing with Crohn’s background. Later in November 1995, the
veteran complained of continued heavy vaginal bleeding and
intermittent cramping. She denied being pregnant. The
diagnosis was vaginal bleeding secondary to lesion introitus.
VA medical records from December 1995 show the veteran
continued to complain of vaginal bleeding and pain; the
diagnosis was an infected follicle or cyst. The next day,
she had the same complaints and also complained of a foul
protrusion from the vaginal area. It was reported this was
necrotic tissue extruding through the introitus. The
diagnosis was probable active Crohn’s disease with entero or
rectovaginal fistula, and the veteran was admitted to the
hospital for intensive therapy to control Crohn’s disease.
At admission, she denied having crampy abdominal pain,
hematochezia, nausea, vomiting, or anorexia, but reported
some periodic watery diarrhea during the past 4 nights with
blood and mucous. Review of systems revealed she lost 2-3
pounds over one month and had weakness, a low grade fever,
and night sweats. Physical examination revealed the abdomen
was soft, non-tender, and non-distended with positive bowel
sounds. Admitting diagnoses included possible Crohn’s flare
with complication, which was noted to be consistent with her
weight loss, abdominal distention, and rectal bleeding. The
other possible diagnoses included obstetrical-gynecological
problems such as trauma, possible tubo-ovarian abscess, or an
ectopic pregnancy. To clarify the diagnosis, a sigmoidoscopy
was performed but was poorly tolerated; the study showed no
abscess or fluctuation. A gynecological examination under
anesthesia revealed multiple vaginal lacerations with a
punctate cervical lesion probably HSV (herpes simplex virus)
and necrotic tissue from the urethra consistent with possible
urethral intercourse versus trauma. The discharge diagnosis
was vaginal lacerations with necrotic tissue. It was noted
the social work clinic was consulted regarding the
possibility of forced sexual intercourse, and the veteran
denied a memory of such an incident.
VA medical records from January 1996 show the veteran
complained of increased vaginal bleeding for 2 days, pain and
bright red bleeding from the rectum, constipation for 2
months followed by diarrhea for 2 days, and mild right lower
quadrant abdominal pain without significant increase over the
past 2 days. She denied nausea, vomiting, and hematemesis.
Physical examination showed the abdomen was soft with mild to
moderate tenderness in the right suprapubic area without
“R/G” and the rectum had hemorrhoids and dried blood on the
skin. A corresponding nursing note revealed no acute
abdominal problems. The diagnoses included hemorrhoids,
vaginal bleeding, and rule out Crohn’s flare. Outpatient
records, dated to April 1996, show treatment for these and
other conditions.
In April 1996, the veteran filed a claim for an increase in
the 30 percent rating for Crohn’s disease. She reported she
took her medication for the disability and had difficulty
holding down a job due to the medication and constant bowel
problems.
VA medical records from May 1996 show the veteran had a
follow-up visit for the vaginal lacerations. She gave a
history of painful intercourse 3 weeks ago. It was reported
she weighed 112.5 pounds. The diagnosis was a well-healed
vagina and the prior lacerations were gone.
In August 1996, the veteran and her brother testified at an
RO hearing. She stated she was hospitalized in December 1995
because she had a lot of gastrointestinal problems, weight
loss, a lot of bleeding with stools, and abdominal pain for
4-5 months prior to admission. She said her entire stomach
was distended, she had constant blood with stools which
formed ulcers, and had about 4 bowel movements each day. She
said the symptoms arose like a flare, were not mild, and
involved sharp pains. She said the flares lasted about 5
months and gradually increased in severity, requiring her to
increase the dosage of her medication. She said there was a
3 ½ month interim between flares over the last 2 years, which
meant she experienced 4 major episodes during that time. She
said the flares seemed to get more severe each time. She
said she was recently laid off from work because she missed
too many days due to illness from Crohn’s disease. She said
she lost about 3 months from work due to the disease. She
said she also began developing ulcers on other parts of her
body, such as the neck and head, and underwent surgery to
remove the ulcer from her neck. She said she was careful to
eat the right food as fried foods and grease could bring on a
flare.
The veteran’s brother testified at the August 1996 RO hearing
that he observed the veteran during her flares of Crohn’s
disease. He said she had difficulty walking due to pain and
he often carried her. He said he would find her balled up in
bed and barely moving. He said he accompanied her to the
hospital and that she was laid off from 2 jobs due to
illness. He said the disease worsened since it first
developed. He said she was able to take care of herself when
it first started and subsequently required more attention,
including having their sister occasionally bathe and clothe
her because she was unable to move.
Secondary service connection for pyoderma gangrenosum (due to
Crohn’s disease) was granted by the RO in November 1996. The
rating for the skin condition is not involved in the instant
appeal.
VA medical records from November 1996 show the veteran
complained of abdominal pain currently and the previous day
with some blood in the stool. It was reported the abdomen
was soft, non-tender, and had positive bowel sounds. The
diagnosis was Crohn’s flare. VA medical records from
December 1996 show the veteran complained of some vaginal
bleeding, dizziness, and lightheadedness. She said she had a
Crohn’s flare 3 weeks ago and was restarted on prednisone.
She said she had irregular bowel movements every other day
and denied any blood or mucous in the stool. She said she
had stopped taking that medication 3 days ago. It was
reported she gained 10 pounds over the last 6 months and had
a good appetite on prednisone. The abdomen was soft, non-
tender, non-distended, and had no masses. Crohn’s medication
was continued.
VA medical records from January to March 1997 show the
veteran had substance abuse problems with cocaine, marijuana,
and alcohol. In February 1997, she was hospitalized, and
gave a history of crack cocaine abuse for 3 years, which she
said increased over the past 2 months. She reported using
cocaine almost continuously for the last 3 days and drinking
one beer every day, sometimes more. She said she had been
living in an abandoned house prior to admission and had not
eaten or slept in 3 days. She denied any nausea, vomiting,
or diarrhea. It was reported the abdomen was soft, non-
tender, and negative for visceromegaly. Bowel sounds were
positive. The veteran refused a rectal examination. The
diagnoses were cocaine, alcohol, and marijuana abuse.
Follow-up treatment records show she reported episodic flare-
ups of Crohn’s disease, participated in the VA Substance
Abuse Treatment Program (SATP), and was progressing well with
it.
In March 1997, the Board remanded the case to the RO for
further evidentiary development, specifically to afford the
veteran a VA compensation examination and to obtain current
treatment records.
In March 1997, the RO sent the veteran a letter notifying her
of the Board remand and the need for her to submit
information regarding recent treatment of her Crohn’s
disease. In April 1997 correspondence from the veteran, and
in a May 1997 RO-veteran telephone contact, she indicated
that all her recent treatment was through the VA. The RO has
obtained all VA treatment records.
VA medical records from April 1997 show the veteran weighed
135.9 pounds. VA SATP notes from May 1997 show she reported
worsening of uterine bleeding ulcers. VA medical records
from May 1997 show she sought treatment for the ulcers and
reported she had finished a steroid taper 2 weeks ago with
much improvement. She denied diarrhea and abdominal pain.
Physical examination revealed the abdomen was soft and non-
tender. The diagnosis was chronic vaginal sores possibly
secondary to pyoderma gangrenosum. Subsequent notes show she
improved with the resumption of medication. Records from
later in May 1997 show she underwent a GI consultation and
complained of worsening pyoderma gangrenosum and rectal
bleeding. Her weight was 128 pounds and the abdomen was
soft, non-tender, non-distended, and had positive bowel
sounds. During a SATP session later that month, she reported
much improvement in her Crohn’s symptoms due to new
medication.
A June 1997 letter from Joshua H. Rubin, M.D., a VA
physician, states the veteran had many complications of
Crohn’s disease, including incontinence and gastrointestinal
bleeding, despite aggressive medical therapy. He said she
consequently had a difficulty maintaining a regular work
schedule and leading a normal lifestyle. He also said the VA
was currently trying new medical therapy to improve control
of the disease.
VA medical records from June 1997 show treatment and
improvement of service-connected pyoderma gangrenosum. They
show the veteran weighed 129.5 pounds and are negative for
any complaints or findings regarding service-connected
Crohn’s disease. In June 1997, the veteran underwent a
colonoscopy to monitor the disease. She reported minor red
bleeding, and her health status was that she had a minor
problem. The colonoscopy revealed small erythematous
punctate lesions with normal intervening areas of normal
mucosa. The doctors commented that while these findings were
consistent with Crohn’s disease, it appeared to be very mild.
The final diagnosis was Crohn’s disease.
VA records show the veteran was scheduled for a VA intestine
examination in July 1997, pursuant to the March 1997 Board
remand. VA records show she failed to report for the
examination. In August 1997, the RO sent her a letter at her
address of record, noting her failure to report for the
examination and requesting whether she was willing to report
for one. The letter stated that she had 60 days from the
date of that letter to respond or the RO would assume she did
not want a VA compensation examination and her appeal would
be reconsidered on the evidence of record. The veteran did
not respond.
II. Analysis
The veteran’s claim for an increase in a 30 percent rating
for Crohn’s disease is well grounded, meaning not inherently
implausible. All relevant facts have been properly developed
to the extent possible, and, therefore, the VA’s duty to
assist the veteran has been satisfied. 38 U.S.C.A.
§ 5107(a). In this regard, it is noted that, without
apparent good cause, the veteran failed to report for a July
1997 VA examination which had been scheduled pursuant to the
Board remand. Veterans have an obligation to report for
scheduled VA examinations. 38 C.F.R. §§ 3.326, 3.327, 3.655.
The duty to assist is not a one-way street, and the veteran
has not fulfilled her duty to cooperate in this matter. Wood
v. Derwinski, 1 Vet. App. 190 (1991). The Board has reviewed
her claim based on the available evidence.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Crohn’s disease is not listed in the rating code, and when
such a circumstance occurs, it is permissible to rate the
unlisted condition under a closely related disease or injury.
38 C.F.R. § 4.20. As a result, Crohn’s disease is rated
under the criteria for ulcerative colitis. A 30 percent
rating will be assigned for ulcerative colitis when it is
moderately severe with frequent exacerbations. A 60 percent
rating, the next higher rating, will be assigned when it is
severe with numerous attacks a year, malnutrition, and the
health being only fair during remissions. 38 C.F.R. § 4.114,
Diagnostic Code 7323.
The medical evidence shows the veteran had a flare of Crohn’s
disease in January to February 1995, and a colonoscopy
performed at that time shows it was mild. She had another
flare in June 1995 with characteristic weight loss to 108
pounds; medical records of this treatment show she stopped
taking her medication for one week and the flare resolved
after she resumed taking it. VA medical records from
November to December 1995 show a flare of Crohn’s disease was
suspected, but following several examinations and inpatient
treatment, the diagnosis was vaginal lacerations with
necrotic tissue due to trauma. Thereafter, the veteran
primarily complained of and was treated for vaginal problems.
In November 1996, almost a year after her last diagnosed
flare of Crohn’s disease, she was diagnosed as having such a
flare and it was simultaneous with her discontinuation of
medication. These records also show she gained 10 pounds,
had a good appetite, and exhibited good results when on
prednisone.
Thereafter, the medical records are negative for symptoms of
Crohn’s disease. The veteran was hospitalized for substance
abuse in February 1997, and records of this treatment and her
follow-up treatment are negative for Crohn’s disease, other
than one report she made about having episodic symptoms. VA
medical records from April 1997 show she weighed 135 pounds,
a significant weight gain. In May 1997, she complained of
vaginal and rectal problems, but weighed 128 pounds and her
abdomen was normal. Records in June 1997 show the same
findings, are negative for complaints of Crohn’s symptoms,
and show a colonoscopy performed that month revealed the
Crohn’s disease was mild.
The Board has considered the testimony of the veteran and her
brother at the 1996 RO hearing to the effect that she had 4
flares of Crohn’s disease during a 2-year period and the
flares increased in severity each time. They testified that
she had constant blood in her stool and missed a significant
amount of work due to the disease. However, the testimony
does not show that she has numerous attacks a year,
malnutrition, or only fair health during remission, which are
required for a 60 percent rating. In fact, some of the
testimony appears to attribute all of the veteran’s health
problems to her Crohn’s disease, which is inconsistent with
the medical evidence. As laymen, the veteran and her brother
do not have competence to provide medical opinions on
diagnosis or etiology of a condition. Espiritu v. Derwinski,
2 Vet.App. 492 (1992).
The evidence shows the veteran has received treatment for
service-connected Crohn’s disease in recent years, but has
primarily received medical treatment for a number of non-
service-connected disorders, and such cannot be considered
when evaluating a service-connected disability. 38 C.F.R.
§ 4.14. She has received some treatment for her service-
connected pyoderma gangrenosum, but the rating for that
condition is not involved in the instant appeal. The
evidence also shows the veteran has maintained a healthy
weight and good appetite in recent years. There is no
evidence of malnutrition or that she has only fair health
during remissions due solely to service-connected Crohn’s
disease.
The overall disability picture for service-connected Crohn’s
disease more closely approximates the criteria for a 30
percent rating (moderately severe) than the criteria for a 60
percent rating (severe) under Code 7323. Thus, the lower
rating of 30 percent is to be assigned. 38 C.F.R. § 4.7. As
the preponderance of the evidence is against the veteran’s
claim, the benefit-of-the-doubt rule is inapplicable, and the
claim for an increase in a 30 percent rating for service-
connected Crohn’s disease must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990).
ORDER
An increase in a 30 percent rating for Crohn’s disease is
denied.
L.W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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